Birth Injury Medical Malpractice in Chicago

Every parent walks into a delivery room expecting to walk out with a healthy baby. When a doctor, nurse, or hospital makes a preventable mistake during labor or delivery, the consequences can follow that child, and that family, for a lifetime. Birth injury medical malpractice is one of the most serious, and most legally complex, areas of personal injury law in Illinois. If your child suffered a preventable injury during birth at a Chicago-area hospital, whether at Northwestern Memorial, Rush University Medical Center, or any other facility in Cook County, you have legal rights worth protecting. Briskman Briskman & Greenberg, located at 205 W Randolph St., Suite 925, Chicago, IL 60606, represents families throughout the Chicago area in birth injury medical malpractice claims.

Table of Contents

• What Counts as Birth Injury Medical Malpractice in Illinois
• Illinois Law Governing Birth Injury Malpractice Claims
• The Section 2-622 Affidavit of Merit Requirement in Illinois
• Damages Available in a Chicago Birth Injury Malpractice Case
• How Briskman Briskman & Greenberg Builds a Birth Injury Malpractice Case
• FAQs About Birth Injury Medical Malpractice in Chicago

What Counts as Birth Injury Medical Malpractice in Illinois

Birth injury medical malpractice happens when a healthcare provider, such as an obstetrician, nurse, or hospital, fails to meet the accepted standard of care during pregnancy, labor, or delivery, and that failure causes harm to the baby or the mother. Not every difficult birth is malpractice. What separates a compensable claim from an unavoidable complication is whether a reasonably skilled provider, under the same circumstances, would have acted differently.

Common examples of birth injury malpractice include failing to monitor fetal distress, improperly using forceps or vacuum extractors, delaying a necessary emergency C-section, mismanaging umbilical cord complications, and failing to diagnose conditions like preeclampsia or gestational diabetes during prenatal care. Each of these failures can cause injuries ranging from temporary nerve damage to permanent brain injury.

The injuries themselves vary widely in severity. Erb’s palsy, which involves damage to the brachial plexus nerve network in the shoulder and arm, is often caused by improper traction during delivery. Cerebral palsy can result from oxygen deprivation, also called birth asphyxia, during labor. Hypoxic ischemic encephalopathy, or HIE, is a form of neonatal brain injury caused by insufficient oxygen and blood flow to a newborn’s brain. These are not minor setbacks. They are lifelong conditions that demand lifelong care.

Mothers can also be victims of birth injury malpractice. Maternal hemorrhage, uterine rupture, and injuries caused by improper surgical technique during a cesarean section are all situations where a provider’s negligence can cause serious, lasting harm to the mother. A qualified Chicago personal injury lawyer can evaluate both the child’s claim and the mother’s separate claim, each of which may be governed by different legal deadlines.

Illinois Law Governing Birth Injury Malpractice Claims

Birth injury malpractice claims in Illinois fall under the Illinois Code of Civil Procedure, which sets out specific procedural requirements that differ significantly from standard personal injury cases. Understanding these rules is essential before filing any claim.

Under Section 13-212 of the Illinois Code of Civil Procedure (735 ILCS 5/13-212), the general statute of limitations for a medical malpractice claim is two years from the date the injury was discovered or reasonably should have been discovered, with an absolute outer limit of four years from the date of the negligent act. However, Illinois law treats injured minors differently. For a child injured at birth, the family has eight years from the date of the injury, or until the child’s 22nd birthday, whichever comes first, to file a medical malpractice lawsuit under 735 ILCS 5/13-212(b). This extended window exists because conditions like cerebral palsy or developmental delays may take months or years to fully appear.

There is an important exception worth knowing. If the child has a qualifying disability, the statute of limitations may be tolled, meaning paused, until that disability is removed. Still, no claim can be brought after the child’s 22nd birthday regardless of circumstances.

A mother filing her own separate claim for injuries she suffered during childbirth is subject to the standard two-year adult medical malpractice deadline, not the extended minor’s timeline. This is one reason why acting promptly matters even when you believe you have years to decide.

Illinois also has specific rules about liability among multiple defendants. Under Section 2-1117 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1117), all defendants found liable are jointly and severally liable for the plaintiff’s past and future medical expenses. Any defendant whose share of fault is 25% or greater is also jointly and severally liable for all other damages. This matters in birth injury cases where both a hospital and individual providers may share responsibility for the harm caused.

The Section 2-622 Affidavit of Merit Requirement in Illinois

Before a birth injury malpractice lawsuit can proceed in Illinois, the law imposes a mandatory threshold step that many families do not know about. Under 735 ILCS 5/2-622 of the Illinois Code of Civil Procedure, a plaintiff filing a medical malpractice claim must attach a sworn affidavit of merit to the complaint. Without it, the court can dismiss the case.

The affidavit requires the plaintiff’s attorney to confirm that they have consulted with a qualified healthcare professional who is knowledgeable in the relevant area of medicine, has practiced or taught in that same area within the last six years, and meets the expert witness standards set out in 735 ILCS 5/8-2501. Along with the affidavit, the plaintiff must file a written report from that healthcare professional stating there is a reasonable and meritorious basis for the claim. A separate report is required for each named defendant, so if both the delivering physician and the hospital are named, two reports must be filed.

The purpose of this requirement is to screen out claims that lack genuine medical foundation. In practice, it means your attorney must retain a qualified medical expert, often a board-certified obstetrician, neonatologist, or other specialist, to review the records and confirm that the provider deviated from the accepted standard of care before a lawsuit can even be filed.

There is a narrow exception. If the statute of limitations is about to expire and the required consultation has not yet been completed, Section 2-622(a)(2) allows a plaintiff to file an affidavit explaining the situation and then submit the full certificate within 90 days. However, courts scrutinize this extension, and relying on it creates unnecessary procedural risk. An experienced medical malpractice attorney begins the expert review process well before any filing deadline approaches.

Damages Available in a Chicago Birth Injury Malpractice Case

Illinois does not cap the damages a family can recover in a birth injury medical malpractice case. The Illinois Supreme Court struck down the state’s medical malpractice damages caps in Lebron v. Gottlieb Memorial Hospital, ruling them unconstitutional. As a result, there is no statutory limit on non-economic damages, such as pain and suffering, in Illinois birth injury claims.

Both the injured child and the parents may seek compensation. The child’s damages typically include past and future medical expenses, the cost of long-term therapy and rehabilitation, special education needs, assistive devices, in-home care, and lost future earning capacity if the injury affects the child’s ability to work as an adult. For a child with a condition like cerebral palsy or HIE, these costs can accumulate into the millions over a lifetime.

Parents can also recover damages for their own losses, including medical expenses related to the mother’s injuries, lost income during recovery, and compensation for emotional pain and suffering. In cases where a newborn dies as a result of malpractice, the Illinois Wrongful Death Act (740 ILCS 180) allows surviving family members to pursue a wrongful death claim. Under that Act, the person or entity whose negligence caused the death remains liable for damages even after the death has occurred.

Under 735 ILCS 5/2-1114, attorney contingency fees in Illinois medical malpractice cases are capped at 33 1/3% of the total amount recovered. This means families can pursue these claims without paying legal fees upfront. You only pay if a recovery is made. Briskman Briskman & Greenberg handles birth injury cases on a contingency fee basis, and potential clients should be aware that while attorney fees are capped by statute, clients may still be responsible for certain case costs and expenses. Discuss the specific fee arrangement and any cost obligations directly with the firm.

How Briskman Briskman & Greenberg Builds a Birth Injury Malpractice Case

Building a successful birth injury malpractice claim requires more than proving something went wrong. It requires proving that a specific provider’s failure to meet the standard of care directly caused the child’s injury, and that the injury produced measurable harm. This is a high evidentiary bar, and it demands a thorough, methodical approach from the very start.

The process begins with a comprehensive review of all medical records, including prenatal records, labor and delivery notes, fetal monitoring strips, nursing documentation, and any post-birth records for both the mother and child. Fetal monitoring errors, for example, can be identified through a careful reading of electronic fetal monitor strips, which record the baby’s heart rate patterns during labor. Abnormal patterns that go unaddressed are a common indicator of negligence in labor and delivery settings.

After the records are reviewed, qualified medical experts evaluate whether the providers deviated from the standard of care. These experts, often board-certified specialists practicing at major academic medical centers, provide the written opinion required under 735 ILCS 5/2-622 and may later testify at trial. Expert testimony is the backbone of any birth injury malpractice case in Illinois.

Damages must also be documented with precision. Life care planners, economists, and medical specialists help calculate the true lifetime cost of caring for a child with cerebral palsy, Erb’s palsy, or a neonatal brain injury. These figures, presented to a jury at the Daley Center courthouse in downtown Chicago, form the foundation of the compensation demand.

Families in Chicago’s Lincoln Park, Hyde Park, Pilsen, and Wicker Park neighborhoods, as well as those in surrounding Cook County communities, turn to Briskman Briskman & Greenberg because the firm handles these cases with both legal rigor and personal care. If your child was harmed during birth, contact a medical malpractice lawyer at Briskman Briskman & Greenberg today at (312) 222-0010 for a free consultation. You can also reach us through our offices at 205 W Randolph St., Suite 925, Chicago, IL 60606. Families in the western and northwestern suburbs can also connect with our team through our medical malpractice attorney resources serving Tinley Park, our medical malpractice lawyer resources for Mt. Prospect residents, and our medical malpractice attorney resources for families in Berwyn.

FAQs About Birth Injury Medical Malpractice in Chicago

How long does a family have to file a birth injury malpractice lawsuit in Illinois?

Under 735 ILCS 5/13-212(b) of the Illinois Code of Civil Procedure, a child injured at birth has eight years from the date of the injury to file a medical malpractice claim, but no later than the child’s 22nd birthday. A mother filing a separate claim for her own injuries during childbirth is subject to the standard two-year medical malpractice deadline, which runs from the date she knew or reasonably should have known of the injury. Because these deadlines run on different tracks, families should consult an attorney as soon as possible to protect all potential claims.

What is the difference between a birth injury and a birth defect?

A birth defect is a condition that develops during pregnancy, typically due to genetic factors or environmental exposures, and is not caused by anyone’s negligence. A birth injury, by contrast, is physical harm that occurs during labor, delivery, or immediately after birth, often as a result of a provider’s failure to act appropriately. Conditions like cerebral palsy, Erb’s palsy, and hypoxic ischemic encephalopathy can result from birth injuries caused by medical negligence, and they may support a malpractice claim even though they can also occur in non-negligence situations. Determining which category applies to your child’s condition requires a review of the medical records by a qualified expert.

Does Illinois limit how much money a family can recover in a birth injury case?

No. Illinois does not cap damages in medical malpractice cases, including birth injury claims. The Illinois Supreme Court struck down the state’s previous damages caps in Lebron v. Gottlieb Memorial Hospital, ruling them unconstitutional. Both economic damages, such as medical expenses and lost future earnings, and non-economic damages, such as pain and suffering, are available without a statutory ceiling. The amount a family can recover depends on the specific facts of the case, the severity of the injury, and the evidence presented.

What is the Section 2-622 affidavit and why does it matter for a birth injury claim?

Under 735 ILCS 5/2-622 of the Illinois Code of Civil Procedure, every medical malpractice plaintiff must file a sworn affidavit of merit alongside the complaint. The affidavit confirms that the plaintiff’s attorney consulted with a qualified healthcare professional who reviewed the facts and determined there is a reasonable and meritorious basis for the claim. A separate written report from that professional must be filed for each named defendant. Failure to include this documentation can result in dismissal of the case. This requirement means that a strong medical expert must be retained before a birth injury lawsuit can be filed in Illinois.

Can both the child and the mother file separate claims after a birth injury?

Yes. Under Illinois law, both the injured child and the mother can pursue separate claims for their own respective injuries. The child’s claim covers harm the child suffered, such as brain damage, nerve injuries, or developmental disabilities. The mother’s claim covers injuries she personally sustained, such as those caused by maternal hemorrhage, uterine rupture, or surgical errors during a cesarean section. Each claim is governed by its own filing deadline, which is why it is important to speak with an attorney promptly after a birth injury occurs rather than waiting to see how the child’s condition develops.

More Resources About Birth Injury and Obstetric Malpractice in Chicago

• Cerebral Palsy Medical Malpractice in Chicago
• Erb’s Palsy Medical Malpractice in Chicago
• Shoulder Dystocia Medical Malpractice in Chicago
• Fetal Distress Medical Malpractice in Chicago
• Umbilical Cord Compression Medical Malpractice in Chicago
• Umbilical Cord Prolapse Medical Malpractice in Chicago
• Delayed Emergency C-Section Medical Malpractice in Chicago
• Failure to Perform Timely Cesarean Section Medical Malpractice in Chicago
• Improper Use of Forceps Medical Malpractice in Chicago
• Improper Use of Vacuum Extractor Medical Malpractice in Chicago
• Birth Asphyxia Medical Malpractice in Chicago
• Hypoxic Ischemic Encephalopathy Medical Malpractice in Chicago
• Maternal Hemorrhage Medical Malpractice in Chicago
• Failure to Diagnose Preeclampsia Medical Malpractice in Chicago
• Failure to Diagnose Gestational Diabetes Medical Malpractice in Chicago
• Labor and Delivery Negligence Medical Malpractice in Chicago
• Fetal Monitoring Errors Medical Malpractice in Chicago
• Uterine Rupture Medical Malpractice in Chicago
• Neonatal Brain Injury Medical Malpractice in Chicago